Don’t tinker with the libel laws – scrap them

No amount of reform will stop England and Ireland's stringent libel laws from having a chilling effect on free speech.

T

6 July 2006

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This week, on the same day that the defamation trial of the Scottish politician Tommy Sheridan began at the Court of Session in Edinburgh, Irish justice minister Michael McDowell announced reforms to Ireland’s defamation laws, which, it is believed, will have far-reaching implications for British newspapers. But the libel laws, whether in Ireland or Britain, do not need further tinkering. They need to be scrapped.

Sheridan, former leader of the Scottish Socialist Party, is suing News Group Newspapers, publisher of the News of the World, and demanding £200,000 in damages, over claims made by the paper in November 2004 that Sheridan had committed adultery, was a ‘swinger’, and had participated in orgies.

With his wife by his side, Sheridan stated: ‘We’re taking on a big organisation that tells lies regularly. But we’re confident we’ll beat them in court.’ Sheridan might fancy himself as a David facing up to a Goliath, but it is not particularly brave to sue newspapers. As a claimant – or plaintiff, as they used to be called – the odds are clearly stacked in your favour, whether or not what was said about you was true.

Indeed, Irish justice minister McDowell announced his proposals to reform Ireland’s libel laws following a number of ‘bluff-type libel cases’. That is where claimants knew the allegations made about them were true but still managed to extract an apology and damages from the publisher because they knew the publisher was unlikely to be able to prove the veracity of the allegation in court.

So under the new proposals in Ireland, anyone who sues a newspaper will have to swear a verifiable affidavit that they know the content of the newspaper article in question to be untrue. But how much of a disincentive will this really be for those who know they are likely to get away with laundering their reputation through the libel courts? If a claimant is confident that the defendant will not be able to prove the veracity of the allegation, does it really matter to them that they have sworn an affidavit? It seems to me that Ireland’s proposed reforms follow in the footsteps of Britain’s many failed attempts to make the libel laws more egalitarian and less censorious.

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Journalist Dominic Ponsford, writing in the UK Press Gazette, argues that: ‘Back in the 1980s, the London libel courts were likened to the most exclusive casino in the world, where only the very rich could afford the huge legal bills necessary to take on newspapers in the High Court’. The risks were high – with notoriously prohibitive legal costs – but so were the rewards. Take the case of the now disgraced peer Jeffrey Archer, who won £500,000 in libel damages from the Daily Star, over allegations that he had sex with a prostitute. (He was forced to pay back the £500,000, with interest, in 2002 after his perjury conviction.)

However, in 1999, with the introduction of Conditional Fee Arrangements (CFAs), the kind of no-win, no-fee rules for lawyers that were pioneered in personal injury cases became a possibility in libel cases too. These no-win, no-fee arrangements have been welcomed by many for levelling out the playing field in libel. But setting aside the arguments I have made previously on spiked - that financial assistance can never make a fundamentally unjust and undemocratic law just and democratic - the CFAs have, in some ways, made matters worse.

Newspapers are raising concerns about the ‘ransom factor’ – that is, being held to ransom by individuals who, whether or not they are likely to win in court, will land the paper with hefty legal bills. No-win, no-fee libel claimants are unlikely to be able to afford the defendant’s legal bills should they lose. So publishers have ended up paying costs amounting to hundreds of thousands of pounds to their own lawyers over stories that were found not to be libellous. Also, the stakes are higher for newspapers sued by individuals under CFAs, as lawyers are allowed to double their normal fees if they win their case since they get nothing if they lose – hence, there is an added incentive for publishers to settle early rather than to test the case in court.

Another ruling that was seen by many as a victory for press freedom was the House of Lords’ decision in the case brought by the former Irish Taoiseach (prime minister) Albert Reynolds against Times Newspapers Limited in the Nineties. The Lords ruled that newspapers that have made defamatory statements – even if they are untrue – should be protected if the information published is so important that the interest in publishing it outweighs safeguarding a person’s reputation.

‘The press discharges vital functions as a bloodhound as well as a watchdog’, the Lords ruled. ‘The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.’

But, as spiked has argued over the Reynolds ruling, England still has a long way to go to catch up with the law as it exists in most other Western countries. In England, libel law rests on the assumption that claimants have an ‘unblemished record’, and claimants only need to show that the words complained of are capable of lowering their standing in the estimation of ‘right-thinking members of the public’.

Those who sue do not need to prove that their reputation has been damaged, nor do they have to prove that the words complained of are untrue. The assumption is that the defamatory statement is false, with the burden falling on the defendant to prove it is true. This reversal of the burden of proof – with the defendant pretty much guilty until he proves his innocence – is almost unique to English libel law.

The defendant does not only have to defend the literal meaning of what has been said, but also possible interpretations. So arguing that a particular defamatory meaning was not intended will not hold up as a defence in court. Claimants can – and often do – succeed in attributing defamatory meanings to statements that the defendant never intended as defamatory.

It is no wonder that London has become the libel tourism hotspot of the world. There have been numerous cases in which claimants have gone out of their way to bring actions in London, even when the alleged defamatory statement was made in a publication based in another country but which has a tiny circulation in the UK. Last year Roman Polanski, the Polish film director now living in France, and facing a statutory rape charge in the USA, won £50,000 in damages from Vanity Fair, an American magazine, by suing it in the High Court in London.

Recent reports suggest that Belfast may soon challenge London as the libel capital of the world. Some US celebrities – including Britney Spears, who is suing the Florida-based National Enquirer – are reportedly looking to take libel action in Belfast’s courts. Belfast, with similar libel laws to England, offers the prospect of higher payouts and lower costs.

Whether Belfast or London, American celebrities sue in the UK because their case would never go to court in their homeland. The landmark ruling in New York Times v Sullivan in 1964 created a ‘public figure defence’, making it extremely difficult for public individuals to sue for libel in the US. To succeed in a libel case, claimants would need to show that not only were the allegations untrue but that they were made maliciously or with reckless disregard to the truth.

The US Supreme Court observed that in free debate erroneous statements are inevitable and must be protected – otherwise free expression would not have the ‘breathing space’ it needs, and media self-censorship would become the norm. The fear of not being able to prove the truth of the published words in court – and the recognition of the expense and resources required to do so – would limit public debate, the Court argued.

In 1997, the US Maryland State Appeals Court refused to recognise an English libel ruling, arguing that the principles of English libel law failed to measure up to basic human rights standards and were ‘repugnant’ to the First Amendment ideal of free speech.

By broadening the scope of qualified privilege it was assumed that English law was finally moving towards incorporating a ‘public interest’ defence. But this doesn’t seem to be the case. When looking at the criteria that publications will have to meet in order to qualify for the protection, it becomes clear that this is only a very small step in that direction.

In the Reynolds ruling, the Lords suggested a list of at least 10 factors that should be taken into account to determine whether journalists and editors acted responsibly, including: the seriousness of the allegation; the nature of the information, and the extent to which the subject matter is a matter of public concern; the source of the information; the steps taken to
verify the information; the urgency of the matter; whether comment was
sought from the claimant or whether the article contained the gist of the
claimant’s side of the story; and the tone of the article.

In short, the price of broadening ‘qualified privilege’ is to submit editorial judgements to judicial scrutiny. Newspapers should have the right to publish abusive articles about politicians and celebrities – who, after all, are at the centre of public life, and who have recourse, more than anybody else, publicly to dispute unfair allegations made against them. When it is left to judges to make decisions about the ‘social and moral duty’ of the media, and to balance the interests of freedom of speech and the protection of reputation, democracy will inevitably suffer. In practice, safeguarding a person’s reputation invariably outweighs the right to publish.

It is almost impossible for editors to know at the time of publication whether a particular story is likely to be protected or not, and this seriously damages the open exchange of ideas.

Some may argue that a law curtailing the freedom to publish titillating revelations about the allegedly sordid sex lives of politicians is not much of a threat to free speech. Of course, it would not be much of a loss to society if the claims about what went on between Sheridan and various women – including in Cupid’s, the swingers club in Manchester – were never published.

But the problem with libel law is that it has a chilling effect on the whole of the media. The law does not only affect those journalists, broadcasters, editors and publishers who are faced with libel writs. If authors, editors or publishers have the smallest inkling that the truth of a proposition cannot be proven in court (even when made in good faith), the knowledge that they will have a less than a one-in-five chance of success in a libel trial means the story is most likely to be dropped.

No matter how we try to tinker with the law, it will continue to have a chilling effect on free speech.